Jane Doe and John Doe v. Walgreens Company

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

October 15, 2010 Session

JANE DOE and JOHN DOE v. WALGREENS COMPANY, ET AL.

Direct Appeal from the Circuit Court for Shelby County

No. CT-002912-08 Robert L. Childers, Judge

No. W2009-02235-COA-R3-CV - Filed November 24, 2010

This is an appeal from the grant of Appellees/Defendants’ Tenn. R Civ. P 12.02 motion to

dismiss. Appellant Jane Doe, who is HIV positive, was employed by Appellee Walgreens.

In an effort to keep her medical condition private, Ms. Doe had her prescriptions filled at a

Walgreens location other than the one at which she worked; therefore, Ms. Doe was also a

customer of Walgreens. A co-worker of Ms. Doe’s accessed Ms. Doe’s prescription history

in the Walgreens’ database, and then disseminated her medical information to other co-

workers and to Ms. Doe’s fiancé. Ms. Doe and her fiancé filed suit. The trial court

dismissed the lawsuit, finding that the Does’ exclusive remedy was under the workers’

compensation act. Finding that the injuries sustained by Ms. Doe do not arise out of her

employment with Walgreens, and that she has sufficiently pled causes of action outside

workers’ compensation law, we reverse the order of dismissal and remand.

Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and

Remanded

J. S TEVEN S TAFFORD, J. , delivered the opinion of the Court, in which D AVID R. F ARMER, J.,

and H OLLY M. K IRBY, J., joined.

David A. Stowers and Coleman W. Garrett, Memphis, Tennessee, for the appellants, Jane

and John Doe.

Leland M. McNabb and Courtney S. Vest, Memphis, Tennessee, for the appellees, Walgreens

Company, Paris Ghoston and Dr. Grady Saxton.

OPINION

At the time of the incidents giving rise to the instant appeal, Jane Doe worked as a

pharmacy technician for the Walgreens store on Winchester Road in Memphis. Ms. Doe’s

direct supervisor was the manager of the pharmacy, Dr. Grady Saxton. Jane Doe, who is

HIV positive, was also a customer of Walgreens but had her prescriptions filled at a different

Walgreens store in Memphis. Ms. Doe avers that she did so in order to maintain privacy

concerning her medical condition.

Walgreens maintains a secure database, and customer information is only authorized

to be accessed in conjunction with filling a customer’s prescription. According to the

Complaint, on August 24, 2004, Dr. Saxton informed Ms. Doe that he had overheard other

employees discussing Ms. Doe’s HIV status. That same day, Dr. Saxton also allegedly

telephoned Ms. Doe’s fiancé, John Doe (together with Jane Doe, “Plaintiffs,” or

“Appellants”) and informed Mr. Doe of Ms. Doe’s condition.1 Four days after Dr. Saxton

made this call, Ms. Doe’s co-worker, Paris Ghoston (together with Walgreens and Dr.

Saxton, “Defendants,” or “Appellees”) allegedly admitted that she had accessed Walgreens’

database in order to confirm Ms. Doe’s HIV status. As a result of the exposure of her HIV

status, Ms. Doe’s co-workers, including Ms. Ghoston, allegedly withdrew their agreement

to participate in Ms. Doe’s wedding (as bridesmaids). Jane Doe subsequently terminated her

job at Walgreens based upon the alleged adverse treatment she received as a result of the fact

that her HIV status had been exposed.

On June 13, 2008, Ms. Doe filed a complaint against Walgreens, Dr. Saxton, and Ms.

Ghoston.2 The Complaint provides, in pertinent part, as follows:

8. On or about January 2002, Jane Doe was employed by

Walgreens as a pharmacist technician at its store located [on]

Winchester [Road], Memphis, Tennessee.

9. Walgreens, to protect the privacy of its HIV positive

pharmacy patients and customers, maintained a secure database

open only to those employees who serviced these particular

patients and customers and who had a business reason to know

the medical status of these individuals.

10. Plaintiff, Jane Doe, during the entire course of her

1

It is unclear from the record whether John Doe was aware of Ms. Doe’s HIV status prior to Dr.

Saxton’s phone call.

2

The Complaint does not indicate whether Dr. Saxton and Ms. Ghoston are being sued individually,

or as employees of Walgreens.

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employment with Walgreens, was HIV positive.

11. Plaintiff, Jane Doe, in an attempt to remove the need to

know for employees who worked at her store location, had her

prescriptions filled at the Walgreens store located at 3177 S.

Perkins, Memphis, Tennessee.

12. At all times pertinent to this action Plaintiff Jane Doe was

enrolled as a State of Tennessee Tenn Care recipient for

prescription and medical care. Defendant Walgreens accepted

payment for Jane Doe’s prescriptions from said state program.

13. Plaintiff Jane Doe wished to and expected to keep her HIV

status secret and confidential from her co-employees and the

public.

14. Dr. Saxton, who at all time pertinent herein, was a

registered pharmacist, licensed by the State of Tennessee, was

also a full time employee of Walgreens. Moreover, Dr. Saxton

was the immediate supervisor of Plaintiff Jane Doe at the

Walgreen’s store [where she worked].

15. On or about August 24, 2004, Dr. Saxton, without medical

or legal justification, and without it being job related or a

business necessity, telephoned Plaintiff Jane Doe’s fiancé and

informed him of Plaintiff Jane Doe’s HIV status.

16. On or about August 24, 2004, Dr. Saxton stated to

Plaintiff[] that he overheard other employees, who without

medical or legal justification or without it being job related or a

business necessity, discussing her HIV status.

17. On or about August 28, 2004, Ghoston stated to Plaintiff

that she deliberately accessed Walgreens’ database to[] review

Jane Doe’s file to ascertain her medical condition.

18. On or about September 4, 2004, Defendant Ghoston and

another pharmacy department employee who agreed to [be]

bridesmaids in Jane Doe’s wedding, abruptly dropped out of the

wedding, without explanation after the dissemination of

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information regarding Jane Doe’s HIV status.

19. On or about February 24, 2005, Plaintiff Jane Doe filed a

health information privacy complaint against Walgreens with

the United States Department of Human Services Office for

Civil Rights (OCR), pursuant to the Health Information

Portability and Accountability Act (HIPPA).

20. As a result of Defendants’ exposure of Plaintiff’s HIV

status to Walgreens’ employees and the public, Plaintiff Jane

Doe, on or about September 2004, was forced to terminate her

employment with Walgreens.

CAUSES OF ACTION

COUNT 1

DISCLOSURE OF INFORMATION OF PATIENT

AS PROHIBITED BY T.C.A. §63-10-412

* * *

22. Defendants by their acts and omissions failed to protect the

privacy and confidentiality of Plaintiff’s HIV status and thus

violated state law:

T.C.A. Section 63-2-101 Release of medical records

(2) Except for any statutorily required reporting

to health or government authorities and except for

access by an interested third-party payer or their

designees, for the purposes of utilization review,

case management, peer reviews or other

administrative functions, the name and address

and other identifying information of a patient

shall not be divulged. The name and address and

other identifying information shall not be sold for

any purpose. Any violation of this provision shall

be an invasion of patient’s right of privacy.

23. As a result of the violation of Plaintiff Jane Doe’s right to

privacy as alleged above, Plaintiffs have suffered extreme

embarrassment and humiliation, great emotional distress, mental

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anguish, loss of income, and loss of enjoyment of life.

COUNT II

DISCLOSURE OF INFORMATION OF TENN CARE

PATIENT AS PROHIBITED BY T.C.A. §10-7-504

* * *

25. Defendants by their acts and omissions failed to protect the

privacy and confidentiality of Plaintiff’s HIV status and thus

violated the following state law:

T.C.A. Section 10-7-504–(a)(1). The medical records of patients

in state, county, and municipal hospitals and medical facilities

and the medical records of persons receiving medical treatment,

in whole or in part, at the expense of the state, county or

municipality, shall be treated as confidential and shall not be

open for inspection by members of the public.

26. As a result of the violation of Plaintiff Jane Doe’s right to

privacy and confidentiality as alleged above, Plaintiffs have

suffered extreme embarrassment and humiliation, great

emotional distress, mental anguish, loss of income, and loss of

enjoyment of life.

COUNT III

GROSS NEGLIGENCE

* * *

28. Plaintiffs allege that Defendants acted with gross negligence

and carelessness by failing to employ the degree of care, skill

and attention, as required of a reasonable and prudent person

under the same or similar circumstances.

29. As a result of Defendants gross negligence, Plaintiffs have

suffered extreme embarrassment and humiliation, great

emotional distress, mental anguish, loss of income, and loss of

enjoyment of life.

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COUNT IV

LOSS OF CONSORTIUM

* * *

31. As a proximate and direct result of Defendants’ actions as

alleged above, Plaintiffs have suffered a loss of consortium,

affection, society, and enjoyment of life with each other in their

marital relationship.

COUNT V

INTENTIONAL INFLICTION

OF EMOTIONAL DISTRESS

* * *

33. The acts and omissions of Defendants alleged herein caused

Plaintiffs to suffer grievous injury and were so outrageous in

character and extreme in degree as to constitute tortious

intentional infliction of emotional distress. As a result of

Defendants’ extreme and outrageous acts, Plaintiffs have

suffered extreme embarrassment and humiliation, great

emotional distress, mental anguish, loss of income, and loss of

enjoyment of life.

COUNT VI

INVASION OF PRIVACY AND

INTRUSION UPON SECLUSION

* * *

35. Plaintiffs reasonably expected that information known to

Defendants, containing her positive HIV status, would remain

private from her co-workers and any other persons. As a result

of Defendants’ invasion of privacy and intrusion upon seclusion,

Plaintiffs have suffered extreme embarrassment and humiliation,

great emotional distress, mental anguish, loss of income, and

loss of enjoyment of life.

COUNT VII

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CONSTRUCTIVE DISCHARGE

* * *

37. Plaintiff Jane Doe alleges that, as a proximate and direct

result of Defendants’ invasion of privacy and intrusion upon

seclusion, breach of confidentiality, gross negligence, and

infliction of emotional distress, she was forced to terminate her

employment, causing a loss of wages and employment.3

(Italics in original).

Based upon the foregoing pleadings, Jane and John Doe sought compensatory and

punitive damages. On October 6, 2008, and November 18, 2008, respectively, Appellees

filed an original and amended answer to the complaint, wherein they denied the material

allegations contained in the complaint and specifically raised the following, affirmative

defenses: (1) the Does’ complaint fails to state a claim upon which relief may be granted;

(2) John Doe’s claim, and any claims against Ms. Ghoston are barred by the statute of

limitations pursuant to Tenn. Code Ann. § 28-3-104; and (3) the Does’ complaint is barred

by the exclusive remedy provisions of the Tennessee Workers’ Compensation Act, Tenn.

Code Ann. § 50-6-108.

On February 26, 2009, Appellees filed a motion to dismiss pursuant to Tenn. R. Civ.

P. 12.02(6). In their motion, Appellees aver that “Plaintiffs’ common-law Complaint is

barred by the exclusive remedy provision of the Workers’ Compensation Act, Tenn. Code

Ann. § 50-6-108.” Appellants filed a response to the motion which was heard on July 17,

2009. By order of July 24, 2009, the trial court granted Appellees’ motion to dismiss,

specifically finding that:

Plaintiff does not allege any intentional acts on the part of the

employer, that the acts alleged against Plaintiff’s co-workers are

not sufficient to take it outside of the workers’ compensation

law and that under Tennessee Code Annotated § 50-6-108,

3

Although the incidents, giving rise to the appeal, occurred in 2004, the Complaint was not filed

until 2008. No reason is given for this delay, nor did the trial court address any statute of limitations issue,

nor is it an issue in this appeal.

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workers compensation is Plaintiff’s exclusive remedy.4

On August 24, 2009, Appellants filed a motion to alter or amend the judgment, which

was denied by order of September 25, 2009. Appellants raise one issue for review as stated

in their brief:

Whether the factual allegations contained in Plaintiffs’

complaint, if taken as true, describe injuries that are not covered

by the workers’ compensation statutes of Tennessee.

It is well settled that a Tenn. R. Civ. P. 12.02(6) motion to dismiss a complaint for

failure to state a claim upon which relief can be granted tests the legal sufficiency of the

complaint. It admits the truth of all relevant and material allegations, but asserts that such

allegations do not constitute a cause of action as a matter of law. See Riggs v. Burson, 941

S.W.2d 44 (Tenn. 1997). When considering a motion to dismiss for failure to state a claim

upon which relief can be granted, we are limited to an examination of the complaint alone.

See Wolcotts Fin. Serv., Inc. v. McReynolds, 807 S.W.2d 708 (Tenn. Ct. App.1990). The

basis for the motion is that the allegations in the complaint, when considered alone and taken

as true, are insufficient to state a claim as a matter of law. See Cornpropst v. Sloan, 528

S.W.2d 188 (Tenn. 1975). In short, a Tenn. R. Civ. P. 12.02(6) motion to dismiss seeks only

to determine whether the pleadings state a claim upon which relief can be granted, and such

a motion challenges the legal sufficiency of the complaint, not the strength of the plaintiff's

proof. Bell ex rel. Snyder v. Icard, 986 S.W.2d 550, 554 (Tenn. 1999). In considering such

a motion, the court should construe the complaint liberally in favor of the plaintiff, taking all

the allegations of fact therein as true. See Cook ex. rel. Uithoven v. Spinnaker's of

Rivergate, Inc., 878 S.W.2d 934 (Tenn. 1994). An appellate court should uphold the grant

of a motion to dismiss only when it appears that the plaintiff can prove no set of facts in

support of a claim that will entitle him or her to relief. Young v. Barrow,130 S.W.3d 59, 63

(Tenn. Ct. App. 2003).

4

Tenn. Code Ann. § 50-6-108 provides, in pertinent part, as follows:

Exclusive rights and remedies; third party indemnity.

(a) The rights and remedies granted to an employee subject to this chapter,

on account of personal injury or death by accident, including a minor

whether lawfully or unlawfully employed, shall exclude all other rights and

remedies of the employee, the employee's personal representative,

dependents or next of kin, at common law or otherwise, on account of the

injury or death.

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The trial court dismissed the Does’ case upon its finding that the alleged injuries

sounded in workers’ compensation, and that the Does’ complaint failed to set out a prima

facie case under the Tennessee Workers’ Compensation Act, Tenn. Code Ann. § 50-6-101,

et seq. (the “Act”). In order to recover benefits under the Act, an employee must prove that

he or she has suffered an “injury by accident arising out of and in the course of employment.”

Tenn. Code Ann. § 50-6-102(12). An injury is considered to be “by accident” when it is

“produced by an ‘unusual combination of fortuitous circumstances.’” Continental Ins. Co.

v. Dowdy, 560 S.W.2d 619, 621 (Tenn. 1978) (quoting Brown Shoe Co. v. Reed, 350 S.W.2d

65, 69 (Tenn. 1961)). An injury is deemed to arise out of the employment “when there is,

apparent to the rational mind ... a causal connection between the conditions under which the

work is... performed and the resulting injury, and [an injury] occurs in the course of one's

employment if it occurs when an employee is performing a duty he was employed to do.”

Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. 1993) (citations omitted). In Tindall v. Waring

Park Ass'n, 725 S.W.2d 935 (Tenn. 1987), our Supreme Court defined the “causal

connection” required before an injury will be held compensable in workers’ compensation:

“[C]ausal connection” [does] not [mean] proximate cause as

used in the law of negligence, but cause in the sense that the

accident had its origin in the hazards to which the employment

exposed the employee while doing his work. Although absolute

certainty is not required for proof of causation, medical proof

that the injury was caused in the course of the employee's work

must not be speculative or so uncertain regarding the cause of

the injury that attributing it to the plaintiff's employment would

be an arbitrary determination or a mere possibility. If, upon

undisputed proof, it is conjectural whether disability resulted

from a cause operating within petitioner's employment, or a

cause operating without employment, there can be no award. If,

however, equivocal medical evidence combined with other

evidence supports a finding of causation, such an inference may

nevertheless be drawn by the trial court under the case law.

Id. at 937 (citations and internal quotation marks omitted).

While we concede that the Does’ Complaint fails to set out a cause of action sounding

in workers’ compensation because it fails to allege that the Does’ injuries were: (1) caused

by an accident, which (2) arose out of, and (3) in the course of, Ms. Doe’s employment with

Walgreens, this finding does not necessarily negate any claims arising outside workers’

compensation law. Having correctly determined that the Does’ complaint fails to state a

claim for workers’ compensation, the trial court also stated that “the acts alleged against

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Plaintiff’s co-workers are not sufficient to take it outside of the workers’ compensation law,

and that, under Tennessee Code Annotated § 50-6-108, workers’ compensation is Plaintiff’s

exclusive remedy.” Here, we respectfully disagree with the trial court.

In reaching its conclusion that the Does’ exclusive remedy lay in workers’

compensation, the trial court inferentially determined that the injuries alleged arose out of

and in the course of Ms. Doe’s employment, and that the Does had failed to so plead. In

McAdams v. Canale, 294 S.W.2d 696 (Tenn. 1956), our Supreme Court distinguished the

phrases “arising out of employment,” and “in the course of employment,” as follows:

“Rising out of employment” refers to the origin of the injury,

while “in the course of employment” refers to the time, place

and circumstances.... The injury received must arise “out of” the

employment as well as “in the course of” employment.

McAdams, 294 S.W.2d at 699 (relying upon Hendrix v. Franklin State Bank, 290 S.W. 30

(Tenn. 1926); Thornton v. RCA Service Co., 221 S.W.2d 954 (Tenn. 1949)). However,

Tennessee law is clear that, if an employee suffers an accident in the course of employment,

it does not necessarily follow that the injury arose out of his or her employment. See Lennon

Co. v. Ridge, 412 S.W.2d 638, 644 (Tenn. 1967) (relying upon Sandlin v. Gentry, 300

S.W.2d 897 (Tenn. 1957)).

In Knox v. Batson, 399 S.W.2d 765 (Tenn. 1965), our Supreme Court denied recovery

when construction workers died of asphyxiation caused by the leakage of gas from a heater

in a motel room where the employees were staying. In Knox, the employees were given the

option of commuting to the jobsite or finding accommodations nearer their work. The

employees, on their own volition, decided to stay in the motel and, therefore, the lodging was

not a direct incident to the employment. The lodging related “exclusively to the comfort and

convenience of the employees, it being not so far removed from the fixed site of their daily

work.” Id. at 775. In so ruling, the Supreme Court quoted with approval the test laid out in

Free v. Indemnity Ins. Co., 145 S.W.2d 1026, 1028 (Tenn. 1941): “If the business of the

master creates the necessity for the travel, the servant is in the course of his employment.”

In reaching its decision, the Knox Court stated, in relevant part, that:

[T]he mere presence of the employee at the place of injury

because of employment will not alone result in the injury being

considered as arising out of the employment. Injury or death of

an employee, to be compensable, must arise out of a risk

peculiar to the employment. Injury or death of an employee from

an exposure which is no more or different than that of any other

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member of the public similarly situated in place and time is not

compensable.

399 S.W.2d at 770 (relying upon Scott v. Shinn, 105 S.W.2d 103 (Tenn. 1937); Thornton

v. RCA Service Co., 221 S.W.2d 954 (Tenn. 1949); Jackson v. Clark & Fay, Inc., 270

S.W.2d 389 (Tenn. 1954)).

However, as recently discussed by this Court, in Coleman v. St. Thomas Hosp., No.

M2009-02526-COA-R10-CV, 2010 WL 3059159 (Tenn. Ct. App. Aug. 4, 2010) perm. app.

denied (Tenn. Nov. 15, 2010), there is no bright-line rule for determining whether an injury

arises out of and occurs in the course of employment, to wit:

Various judicial “tests” and “doctrines” have emerged for

determining when an injury arises out of and occurs in the

course of employment, such as the “positional doctrine,” the

“peculiar hazard doctrine,” the “foreseeability test,” the

“street-risk doctrine,” and others. See Bell, 597 S.W.2d at 734.

However, our Supreme Court has “consistently abstained from

adopting any particular judicial test, doctrine, formula, or label

that purports to ‘clearly define the line between accidents and

injuries which arise out of and in the course of employment

[and] those which do not[.]’” Wait, 240 S.W.3d at 225 (quoting

Bell, 597 S.W.2d at 734). The Court has repeatedly rejected “the

use of artificial labels,” stating that “classification and labeling

is not the best method of determining whether an injury is

compensable.” Hall v. Mason Dixon Lines, Inc., 743 S.W.2d

148, 151 (Tenn.1987). The Court has found it “difficult, perhaps

impossible to compose a formula” which clearly defines those

accidents resulting in compensable injuries. Id. As such, in

Tennessee, “[t]here is no formula which will clearly define the

line between accidents and injuries which arise out of and in the

course of employment and those which do not.” DeBow v. First

Inv. Prop., Inc., 623 S.W.2d 273, 275 (Tenn. 1981). Instead,

“‘each case must be decided with respect to its own attendant

circumstances and not by resort to some formula.’” Braden v.

Sears, Roebuck & Co., 833 S.W.2d 496, 499 (Tenn. 1992)

(quoting Bell, 597 S.W.2d at 734). As a result, “the standards

employed by [the] Court in deciding whether accidents arise out

of employment have led to diverse results.” Hudson v. Thurston

Motor Lines, Inc., 583 S.W.2d 597, 600 (Tenn.1979).

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Id. at *3.

The Does argue that the alleged injuries stem from Ms. Doe’s status as a customer of

Walgreens, and that the injuries the Does sustained are no different from those injuries that

could be suffered by any member of the public, whose prescription information is held in the

Walgreens’ database. Appellees contend that a customer of Walgreens could not sustain the

particular injuries averred by the Does. Rather, because the Walgreens’ database can only

be accessed by Walgreens employees, on Walgreens’ computers, at Walgreens’ locations,

Appellees argue that the alleged injuries arose out of Ms. Doe’s employment, thus limiting

her cause of action to workers’ compensation.

Appellees first contend that Ms. Doe has failed to specifically plead her status as a

customer of Walgreens. Concerning her status, the Complaint states, in relevant part, that:

(1) “Doe was employed by Walgreens as a pharmacist technician;” (2) “Doe had her

prescriptions filled at the Walgreens store located at 3177 S. Perkins, Memphis, Tennessee;”

(3) Doe was enrolled as a...Tenn Care recipient for prescription medical care;” (4)

“Walgreens accepted payment for Jane Doe’s prescriptions from the [State].” Appellees

argument that Jane Doe’s Complaint fails to indicate her status as a customer of Walgreens

is, in the opinion of this Court, too myopic in light of these sections of the Complaint. In the

first instance, Appellees’ argument fails to give the Does the reasonable inference of the

foregoing averments. Tigg v. Pirelli Tire Corp., 232 S.W.3d 28, 31 (Tenn. 2007). Without

stretching the language of the complaint to an untenable point, if Ms. Doe had her

prescriptions filled at Walgreens, and if Walgreens accepted payment for those prescriptions,

the only reasonable inference we can draw from those statements is that Ms. Doe was a

Walgreens’ customer. Moreover, the Does’ Complaint states that, “Walgreens...maintained

a secure database open only to those employees who serviced...patients and customers and

who had a business reason to know the [customers’] medical status.” From this statement,

we can reasonably infer that the sole reason for Walgreens (or its employees) to have access

to Ms. Doe’s prescription history was because she was a customer. If Ms. Doe had not been

a customer of Walgreens (i.e., if she were only an employee of Walgreens), then her records

would not be part of its database.

Appellees next argue that the Does’ Complaint fails to specify that Appellees acted

with the requisite intent necessary to remove their claims from the workers’ compensation

framework. As noted above, a workers’ compensation claim requires an employee to prove

that he or she has suffered an “injury by accident arising out of and in the course of

employment.” Tenn. Code Ann. § 50-6-102(12) (emphasis added). An injury is considered

to be “by accident” when it is “produced by an unusual combination of fortuitous

circumstances.” Continental Ins. Co. v. Dowdy, 560 S.W.2d at 621 (citation omitted).

However, a judicially created exception to the exclusive remedy requirement of workers’

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compensation law exists where the employer can be said to have acted with the “actual intent”

to injure the employee. Valencia v. Freeland & Lemm Const. Co., 108 S.W.3d 239 (Tenn.

2003). In Valencia, our Supreme Court explained this exception:

[W]orkers’ compensation law provides the exclusive remedy for

an employee who is injured during the course and scope of his

employment, meaning the employee is precluded from seeking

tort damages for the injury. Liberty Mut. Ins. Co. v. Stevenson,

212 Tenn. 178, 368 S.W.2d 760 (1963).

As have other jurisdictions, Tennessee courts have created an

exception to the exclusivity provision for intentional torts

committed by an employer against an employee; these torts give

rise to a common-law tort action for damages. Mize v. Conagra,

Inc., 734 S.W.2d 334, 336 (Tenn. Ct. App.1987) (Rule 11

permission to appeal denied)....The court in Mize explained the

reason for this exception as:

Since the legal justification for the common-law

action is the non-accidental character of the injury

from the defendant employer's standpoint, the

common law liability of the employer cannot be

stretched to include accidental injuries caused by

the gross, wanton, wilful, deliberate, intentional,

reckless, culpable, or malicious negligence,

breach of statute, or other misconduct of the

employer short of general intentional injury....

Even if the alleged conduct goes beyond

aggravated negligence, and includes such

elements as knowingly permitting a hazardous

work condition to exist, knowingly ordering

claimant to perform an extremely dangerous job,

wilfully and unlawfully violating a safety statute,

this still falls short of the kind of actual intention

to injure that robs the injury of accidental

character. [ King,] 684 S.W.2d at 619.

Mize, 734 S.W.2d at 336.... Further, proof of

actual intent goes beyond that sufficient to prove

gross negligence or even criminal negligence.

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Gonzales v. Alman Constr. Co., 857 S.W.2d 42,

45 (Tenn. Ct. App. 1993) (Rule 11 permission to

appeal denied).... While the traditional definition

of intent used in tort law denotes the tortfeasor's

desire to cause the consequences of his or her

actions or the belief that the consequences are

substantially certain to result from those actions,

Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901

(Tenn. 1992), that definition is not applicable in

workers' compensation cases. Gonzales, 857

S.W.2d at 45. Rather, the definition of actual

intent is the actual intent to injure the employee.

King, 684 S.W.2d at 619.

Valencia, 108 S.W.3d at 242-43 (some citations omitted).

Based upon the foregoing, Appellees argue that the Does’ Complaint fails to specify

that Appellees’ actual intent was to injure Ms. Doe. We note that at no point in their

Complaint, do the Does allege that the injuries occurred “by accident.” Tenn. Code Ann. §

50-6-102(12). Rather, the Complaint clearly avers that the injury (i.e., the dissemination of

Ms. Doe’s HIV status, and the direct fallout therefrom) occurred as a result of Ms. Ghoston

“deliberately access[ing] Walgreens’ database,” and as a result of Dr. Saxton’s telephone call

to Ms. Doe’s fiancé. The Does aver that both of these actions were made “without medical

or legal justification, and without [] being job related or a business necessity.” As noted

above, in reviewing a trial court's ruling on a motion to dismiss based on Rule 12.02(6), we

must liberally construe the pleadings, presuming all factual allegations are true and drawing

all reasonable inferences in favor of the complainant. See Tigg, 232 S.W.3d at 31; see also

Kincaid v. SouthTrust Bank, 221 S.W.3d 32, 37 (Tenn. Ct. App. 2006). Based upon the

foregoing factual allegations, we can reasonably infer that the alleged injuries arose from the

deliberate acts of Dr. Saxton and Ms. Ghoston and not as a result of any accidental discovery

or dissemination of Ms. Doe’s prescription records. Further, because these deliberate acts

lacked any medical, legal, business, or job related justification, it is reasonable to infer that

they were made with the actual intent to injure the Appellants.

Appellees next argue that, but for Ms. Doe’s status as an employee of Walgreens, she

would not have sustained the alleged injuries. Specifically, Appellees contend that the

injuries arose out of Ms. Doe’s employment because the harmful information was obtained

from the Walgreens’ database, at the Walgreens location, and by employees of Walgreens

(who would not have access to those records but for their status as Walgreens employees).

It is true that there must be a causal connection between the conditions under which the work

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is required to be performed and the resulting injury, in order to find that an injury “arises out

of employment.” See Phillips v. A & H Const. Co., Inc., 134 S.W.3d 145, 150 (Tenn. 2004).

Essentially, a court must ask if the origin of the “accident” (here, disclosure of Ms. Doe’s

prescription information), is rooted in a hazard that the employer exposed the employee to

while working. See Wilhelm v. Krogers, 235 S.W.2d 122 (Tenn. 2008). Even if we assume,

arguendo, that Appellees’ argument is sound, it is Ms. Doe’s co-worker’s status as

employees of Walgreens, rather than Ms. Doe’s status as an Walgreens employee, that

provided access to the database. In short, the ability to access Ms. Doe’s prescription records

was based upon the co-workers’ being employees of Walgreens, a fact which, as pled in the

Complaint, may implicate Walgreens on theories of “respondeat superior, [or] agency.”

However, the fact that it was Ms. Doe’s records that were accessed does not hinge upon Ms.

Doe being an employee of Walgreens; rather, it hinges upon her status as a customer, which

is the reason her records were in the system at all. Although the fact that Ms. Doe was an

employee of Walgreens may have provided the reason for her co-workers to access her

information, this does not answer the question of whether Ms. Doe’s injuries arise out of her

employment. In so arguing, Appellees appear to overlook the fact that “the mere presence

of the employee at the place of injury because of employment will not alone result in the

injury being considered as arising out of the employment.” Knox, 399 S.W.2d at 770.

Rather, in order to be compensable in workers’ compensation, the injury must “arise out of

a risk peculiar to the employment.” Id. If, however, the injuries sustained are no more or

different than that of any other member of the public similarly situated in place and time,

then the injuries are not compensable under workers’ compensation law. Id.

In arguing that the alleged injuries arose out of Ms. Doe’s employment, Appellees

assert that “[e]mployment with a pharmacy necessitates access by employees to confidential

health information.” While this general statement may be true, the question here is not

whether a pharmacy employee must access confidential health information, it is whether the

pharmacy employees, in this case, had a legitimate, work-related reason to access Ms. Doe’s

particular information. From the pleadings, the answer is no. Although the pharmacy

workers at the Walgreens location on Perkins, where Ms. Doe actually had her prescriptions

filled, would, necessarily, need access to Ms. Doe’s records, there appears to be no business

reason for Ms. Doe’s co-workers at the Winchester location to access her prescription

records. In the Complaint, the Does aver that Walgreens, in order “to protect the privacy of

its HIV positive pharmacy patients and customers, maintained a secure database open only

to those employees who serviced these particular patients and customers and who had a

business reason to know the medical status of these individuals.” The Complaint further

states that her co-worker Ms. Ghoston deliberately accessed Ms. Doe’s records, then

disseminated the information “without medical or legal justification [and] without it being

job related or a business necessity.” Moreover, as concerns Dr. Saxton, the Complaint states

that “without medical or legal justification, and without it being job related or a business

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necessity, [Dr. Saxton] telephoned [Ms. Doe’s] fiancé and informed him of [Ms. Doe’s] HIV

status.”

In defending the grant of their motion to dismiss, Appellees rely upon the case of

Holder v. Wilson Sporting Goods Co., 723 S.W.2d 104 (Tenn. 1987). In Holder, our

Supreme Court affirmed an award of workers’ compensation benefits for an employee who

slipped and fell in his employer’s parking lot, while he was putting his lunch box in his

vehicle after finishing a meal. Id. at 105-107. The Court reasoned that injuries sustained

during personal breaks are compensable under workers’ compensation law because it is

reasonable to conclude that employees would take personal breaks during the course of the

work day.” Id. Based on Holder, Appellees argue that “it is reasonable to conclude that co-

workers will discuss each other throughout the work day.” However, Appellees reliance on

Holder is misguided. Holder, which dealt with an accident that occurred during an on-

premises lunch break, is different in kind from the case presented here, in which the injuries

stem from the alleged intentional acts of co-workers. As noted above, an exception to the

exclusive remedy requirements of workers’ compensation law exists where the employer acts

with the actual intent to injure the employee. Valencia, 108 S.W.3d at 242-43. Having

found that the Does’ alleged sufficient facts that Appellant acted with actual intent to injure,

it would be incongruous for this Court to hold that such allegedly tortious acts must

nevertheless be adjudicated under workers’ compensation simply because it “it is reasonable

to conclude that co-workers” will behave in such a manner. Because the Does’ sufficiently

alleged that Appellee’s acted with the actual intent to injure, Holder does not apply to the

facts of this case.

As discussed above, no employee of the Walgreens on Winchester had a business

reason to access Ms. Doe’s prescription records. However, taking the factual allegations

contained in the Complaint as true, not only did her co-worker access this information

unnecessarily, but she also disseminated the information to other employees. Moreover, Ms.

Doe’s supervisor, Dr. Saxton, phoned Ms. Doe’s fiancé to spread the information further.

Having determined that there was no business reason for the actions of Ms. Doe’s co-workers

and that, consequently, the injurious activities did not arise out of, or in the course of, Ms.

Doe’s employment, the causes of action averred do not sound in workers’ compensation.

Rather, Ms. Doe has sufficiently pled causes of action arising from her status as a customer

of Walgreens.

For the foregoing reasons, we reverse the order of the trial court dismissing this case,

and remand for such further proceedings as may be necessary and consistent with this

Opinion. Costs of this appeal are assessed against the Appellees, Walgreens, Paris Ghoston,

and Grady Saxton, for which execution may issue if necessary.

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_________________________________

J. STEVEN STAFFORD, JUDGE

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